This case out of the UK highlights the perils of proceeding with a surrogacy arrangement in a country that permits a surrogate to rescind her consent:
A couple who lost custody of their baby daughter to her surrogate mother have been ordered to hand over more than £500 a month maintenance for the child. Today they spoke of their disgust that they would be forced to pay for someone else to raise the child they will never see.
The father, a leading chef, said the decision by the Child Support Agency ‘added insult to injury’ and that he would appeal against it. He and his wife, who had suffered six late-stage miscarriages including four sets of twins, used a surrogacy website to find a single mother of two on benefits who was willing to carry the baby they longed for.
They made an informal agreement to pay her £10,000 in expenses. But halfway through the pregnancy she decided she wanted to keep the baby and a judge ordered that the woman, who was also the biological mother, could keep the child despite her earlier promise.
The couple, referred to as Mr and Mrs W to protect the child’s identity, later relinquished their contact rights because they said it would be too difficult emotionally and that it was unfair for the baby to be split between two homes. They allowed the surrogate, known as Miss N, to keep the £4,500 they had already given to her.
But now Mr W must also pay £568 in child support every month as the biological father of the eight-month-old girl. ‘She cannot say, “I am keeping your child and now you must pay for it”,’ he said. ‘She has taken away our baby and now she is taking our money. To me, that is completely wrong. The CSA has made the decision as if we were a couple who had broken up, but our situation is unique. ‘We were not having a baby together, we had agreed for her to carry a child for myself and my wife. ‘I have written to Downing Street and my MP to call for a change in the law.’
Mr W said he now suspected it may have been Miss N’s plan all along to have a child with a wealthy man from whom she could claim child support over the next 18 years. ‘We should have seen the signs when she started asking for more than we had agreed. I don’t think this was ever about her suddenly wanting to keep the baby, I think this was about getting an income.’ The chef said he would feel more comfortable paying for vouchers which could be redeemed on food and clothing than money which would not necessarily go towards the child. ‘If I need to pay £500 a month because otherwise the child will be living in poverty then that is another reason why the baby should be with us. We would have given her all the things she needed.’
Mrs W, who is in her late 30s, had cancer of the womb in her 20s and complications from surgery meant it was difficult for her to carry a baby to full term. After she and her husband contacted her via a website, Miss N agreed to be inseminated with Mr W’s sperm, meaning they were both the baby’s biological parents. But the relationship between the two parties turned sour after Miss N apparently began asking for more money. Three months before the baby was due, she sent a text message to the couple to say she was keeping the child.
In July last year she gave birth to baby T and a bitter six-month custody battle ensued. Niss N accused Mr W of being violent towards his wife, which the couple denied. They accused Miss N of neglecting her sons and of living in a filthy home. In January, in a rare case, Miss N was awarded custody after a judge deemed it was in the child’s best interests because there was a ‘clear attachment’ between the mother and daughter.
At the time, Mr Justice Baker warned that the risks of entering into a surrogacy agreement were ‘very considerable’. Surrogacy agreements are not legally binding in court, even with a formal written contract. It is illegal to profit from surrogacy but ‘reasonable expenses’ are permitted.